Google To Make Case That Gmail Practices Do Not Violate Privacy Laws

Google is embarking today on what will likely be a long and arduous process to throw out a class-action lawsuit against it. The lawsuit concerns whether Gmail is violating federal and California state privacy laws by having an automated processor scan emails sent from non-Gmail accounts. Google's argument is publicly available for download.

One of the statements that put Google in hot water is that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." That quote, while part of Google's motion to dismiss the lawsuit, is a citation from a 1979 court case. Nevertheless, the implications for how that statement applies to Gmail today is being debated.

Google did not officially comment regarding its motion. However, an anonymous source that works closely with Gmail said that many of its practices are the same as found in other email services. "I can't think of any email service that doesn't do this, at least for spam filtering and virus protection," the source told ABC News.

And John Simpson, the director of Consumer Watchdog's Privacy Project, acknowledges that it's natural for email services to filter out spam. "But Google does much more than that," he told ABC News. "They actually read and data-mine the content of the messages. They're using my content for whatever purposes they want to do with it."

While Google doesn't have human beings sifting through the e-mails, Lorrie Cranor, director of the privacy engineering master's program at Carnegie Mellon University, said the company's practice could still constitute a breach in privacy. "The issue isn't whether it's a machine or human reading emails, but what could happen as a result of having your email read," she said.

Google admits in its privacy policy the type of information it collects from emails and how that data is used. While the company does offer users options for Google users to opt out of receiving targeted ads and resources to move information outside of Google's reach, it does not say how it deals with messages that originate outside of Gmail.

Rachel Greenstadt, an assistant professor of computer science at Drexel University, added that forwarding emails to Gmail complicates the issue even further. "You sent an email to my Drexel account, but it got forwarded to my Gmail," she said. "You had no idea that was going to happen, and now it's subject to Gmail's processing."

If Google's motion were to be denied and the court rules that Google's practice does violate privacy laws, Simpson has some ideas for how the company could change. "Maybe they could use ads that aren't based on reading your email," he said. "Or they could just stop reading emails. There are a number of commercial services that are more amenable to privacy concerns."

The case is being heard in the U.S. District Court in San Jose, Calif.

Regardless of where the legal decision falls, arguments like these will likely surface again. "There is a difference between user expectations and business practices," said Cranor. "Just because every business may do it doesn't mean that users know the things that are actually done. Ideally, the best choice is to give people the option to opt out."